Mez Industries, Inc. v. Pacific National Insurance

Opinion

This case presents the question of whether a liability insurer providing coverage for “advertising injury” is required to defend its *861 insured in an action charging the insured with inducement of patent infringement. When the respondent, Pacific National Insurance Company (Pacific) refused to provide such a defense to the appellant, Mez Industries, Inc. (Mez), Mez filed this action for declaratory relief and breach of contract. The trial court sustained Pacific’s demurrer without leave to amend and thereafter entered a judgment of dismissal. 1

Because we conclude that the advertising injury provisions of Pacific’s policy did not provide coverage to Mez for inducement of patent infringement and, in any event, such coverage would have been precluded by Insurance Code section 533, 2 we conclude that no potential for coverage existed as a matter of law and thus no duty to defend ever arose. The trial court ruled correctly and we therefore affirm.

Factual and Procedural Background 3

Mez is engaged in the business of manufacturing, distributing and selling components used for the connection of joints in airflow conduction systems (such as central heating and air conditioning systems). It manufactures these components and advertises them for sale through wholesalers to mechanical and sheet metal construction contractors who use the components to create duct systems in various building projects throughout the United States.

On April 10, 1995, Ductmate Industries, Inc. (Ductmate) filed a complaint against Mez in the United States District Court for the Northern District of Ohio in an action styled as Ductmate Industries, Inc. v. Mez Industries, Inc., No. 4:95CV00815 (hereinafter, the Ductmate action). Stripped to its relevant essentials, the complaint in that action alleged that Mez had induced its customers to infringe at least four of Ductmate’s patents for certain “flange-type duct joint assemblies] and seal arrangement[s] [therefor].” 4

*862 Ductmate’s alleged claims of inducement of patent infringement pursuant to 35 United States Code section 271(b) were not based upon Mez’s manufacture of the individual component parts for a duct system joint assembly, but rather upon those activities of Mez that caused or encouraged others to take those component parts and put them together in a way which infringed Ductmate’s patents. Those activities by Mez necessarily involved its advertising activities, which encouraged and solicited others to buy Mez’s products and assemble them in a particular manner. For example, Ductmate featured in its own advertising its “Slide-On Connectors” for use in putting together a conduction system and provided step-by-step instructions for assembly and installation. Mez has distributed a variety of advertising brochures, mailers, and promotional booklets depicting HVAC duct joint assemblies which graphically illustrated how Mez’s comers, flanges and seals could work as substitutes for Ductmate’s Slide-On-Connectors corner units and related products. In addition, Mez’s assembly and installation instructions produced the same HVAC ducts as depicted in Ductmate’s advertising materials.

At least for our purposes, there is no contention that Mez’s products themselves infringed upon any of Ductmate’s patents. (See fn. 4, ante.) Rather, the relevant essence of the Ductmate action is that Mez’s advertising, marketing and sales promotion activities solicited, encouraged and induced engineers, contractors, distributors and builders to purchase Mez’s products and to combine and assemble them in a manner which did infringe Ductmate’s patents.

Mez tendered defense of the Ductmate action to Pacific on or about July 6, 1995. Mez asserted that it was entitled to coverage and a defense of the action under the “Advertising Injury” section of Pacific’s liability policy. As relevant to the issues before us, that policy promised both indemnity and a defense for an injury caused by one or both of the following two “offenses” committed in the course of advertising goods, products or services in the coverage territory during the policy period;

(1) “Misappropriation of advertising ideas or style of doing business,” and

(2) “Infringement of copyright, title or slogan.” 5

On or about November 22, 1995, after a review of the matter, Pacific denied coverage and refused to provide a defense. On June 4, 1997, Mez *863 filed this action alleging essentially the forgoing facts and asserting that Pacific had wrongfully denied coverage. Mez alleged that it was entitled to a defense and sought a declaratory judgment for Pacific’s breach of its contractual obligations under the policy. 6

Pacific attacked this complaint by demurrer, asserting that, as a matter of law, there could be no potential for coverage and thus no duty to defend. Pacific argued that the claim of inducing patent infringement is simply not a covered offense under the advertising provisions of the policy and, in any event, coverage for such an act would be precluded under section 533. The trial court agreed and, on January 9, 1998, sustained Pacific’s demurrer without leave to amend. 7 A judgment of dismissal was thereafter entered on January 27, 1998. Mez has filed this timely appeal.

*864 Contentions of the Parties

Mez contends that there is at least a potential for coverage under the Pacific policy. It argues that the offenses of (1) “misappropriation of advertising ideas or style of doing business” and (2) “infringement of copyright, title or slogan” are both ambiguous and each could reasonably include the alleged inducement of patent infringement. Therefore, Mez concludes, Pacific had a duty to provide Mez with a defense to the Ductmate action and the trial court erred when it sustained Pacific’s demurrer and entered a judgment of dismissal.

Pacific rejects these contentions and reasserts the same basic arguments which the trial court accepted and upon which it based its ruling.

Discussion

1. Standard of Review

A demurrer tests the sufficiency of the allegations in a complaint as a matter of law. (Pacifica Homeowners’ Assn. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1151 [224 Cal.Rptr. 380].) We review the sufficiency of the challenged complaint de novo. (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 837 [33 Cal.Rptr.2d 438].) We accept as true the properly pleaded allegations of fact in the complaint, but not the contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) We also accept as true facts which may be inferred from those expressly alleged. (Marshall V. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [44 Cal.Rptr.2d 339].) We consider matters which may be judicially noticed, and we “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We do not concern ourselves with whether the plaintiff will be able to prove the facts it alleges in its complaint. (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1521 [37 Cal.Rptr.2d 810].) The judgment or order of dismissal must be affirmed if any of the grounds for demurrer raised by the defendant is well taken and disposes of the complaint. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr .2d 92, 831 P.2d 317].)

*865 2. Advertising Injury Coverage Cannot Be Established in This Case

Advertising injury liability has become part of the coverage offered in commercial general liability (CGL) policies only recently. Prior to 1986, this coverage was offered by a separate broad form endorsement for which an additional premium was charged. It is important to understand that this coverage is entirely distinct from the bodily injury and property damage coverage which has long been the standard fare of CGL policies.

Bodily injury and property damage coverage is dependent upon an “accident” or “occurrence” and coverage is not triggered until an injury or damage results. (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 1999) *|fll 7:1001 to 7:1003, pp. 7C-1 to 7C-3.) Advertising injury, on the other hand, applies to injury resulting from the commission of certain specified offenses. (Ibid.) It does not depend upon an accident, but may be based (and often is) on the intentional acts of the insured. Thus, even certain intentional torts may be covered (subject, of course, to the statutory exclusion under section 533, which we discuss below). (Croskey et al., at 7:1002.1 to 7:1002.2, 7:1004 to 7:1004.2, pp. 7C-2, 7C-4.) The event triggering coverage is the commission of the specified offense during the policy period, provided that it is committed in the course of advertising goods, products or services. (Id. at 7:1008 to 7:1009, p. 7C-5.)

a. There Is No Coverage for a Patent Infringement Claim

The specified “offenses” with which we are concerned here are the (1) “misappropriation of an advertising idea or style of doing business” and (2) “infringement of copyright, title or slogan.” If Mez’s alleged inducement of the infringement of Ductmate’s patents fits either of these two offenses, and was committed in the course of Mez’s advertisement of its own products, then coverage would be available. It is doubtless because of this latter requirement that Mez does not argue on appeal that coverage is provided for the direct patent infringement which is also alleged in the Ductmate action. Under relevant applicable federal law (i.e., prior to the 1996 effective date of the 1994 amendment), patent infringement occurs when a party makes, uses or sells a product incorporating a patented invention. (35 U.S.C. § 271(a).) 8 Where the claim in the underlying action is that an insured directly infringed *866 the patents of another by the sale of its products, rather than by the form of the insured’s advertisements, then the patent infringing act did not occur in the course of the insured’s advertising activities within the meaning of the relevant policy language. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1275 [10 Cal.Rptr.2d 538, 833 P.2d 545].) An advertising injury must have a causal connection with the insured’s advertising activities before there can be coverage. (Id. at p. 1277.) As there is no contention here that Mez directly violated any of Ductmate’s patents by its advertising activities, Mez cannot claim coverage for the allegations of direct patent infringement. (See Simply Fresh Fruit, Inc. v. Continental Ins. Co. (9th Cir. 1996) 94 F.3d 1219, 1222-1223; Everest and Jennings v. American Motorists Ins. (9th Cir. 1994) 23 F.3d 226, 228-230; Iolab Corp. v. Seaboard Sur. Co. (9th Cir. 1994) 15 F.3d 1500, 1505-1506; see also Gitano Group, Inc. v. Kemper Group (1994) 26 Cal.App.4th 49, 57-60 [31 Cal.Rptr.2d 271].) Thus, Mez has limited its coverage argument to the allegations that inducement of infringement is alleged by Ductmate and that such allegation is enough to justify coverage.

b. There Is No Coverage for an Inducement of Patent Infringement Claim

Federal law also proscribes inducing patent infringement. (35 U.S.C. 271(b).) This section provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” However, the alleged infringer must be shown to have knowingly induced infringement. (Water Technologies Corp. v. Calco, Ltd. (Fed. Cir. 1988) 850 F.2d 660, 668.) “It must be established that the defendant possessed specific intent to encourage another’s infringement and not merely that the defendant had knowledge of the acts alleged to constitute inducement. The plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringements. [Citations.]” (Manville Sales Corp. v. Paramount Systems, Inc. (Fed. Cir. 1990) 917 F.2d 544, 553, italics omitted.)

Unlike direct infringement, it is possible for inducement to infringe to occur during the course of advertising activities; indeed, advertising has *867 been found to be a sufficient basis for a claim of inducement. 9 (U.S. Fidelity & Guar. v. Star Technologies (D.Ore. 1996) 935 F.Supp. 1110, 1116; New Hampshire Ins. v. R.L. Chaides Const. (N.D.Cal. 1994) 847 F.Supp. 1452, 1458.) However, liability can only be found if the inducement is “active”; that is, a party must “purposefully cause, urge or encourage another to infringe.” (Honeywell, Inc. v. Metz Apparatewerke (7th Cir. 1975) 509 F.2d 1137, 1142.) Something more is required than simply the advertising of a product for sale. “In addition, the advertisement must instruct or explain to the purchaser exactly how to recreate or reassemble the product into one that infringes a patent.” (U.S. Fidelity & Guar. v. Star Technologies, supra, 935 F.Supp. at p. 1116; see also Fromberg, Inc. v. Thornhill (5th Cir. 1963) 315 F.2d 407, 412 [defendant advertised and personally demonstrated to purchasers how his device could be inserted into another object to recreate a patented product].)

Having in mind these general principles, we address the two questions which are raised by the parties’ briefs as to whether coverage was provided for such conduct under Pacific’s policy: (1) is the inducement of patent infringement an advertising offense within the meaning of the policy and, in any event, (2) is coverage under the policy for such an act barred by section 533? 10

(1) Inducing Patent Infringement Does Not Constitute an Advertising Injury Offense

Pacific argues that neither direct patent infringement nor the inducement thereof is included within either the (1) “misappropriation of an advertising idea or style of doing business” or (2) “infringement of copyright, title or slogan.” Mez responds that those terms are ambiguous, as they are subject to at least one reasonable interpretation which would include patent infringement or at least its inducement.

It is now settled that the interpretation of an insurance policy is no different than the interpretation of contracts generally. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-823 [274 Cal.Rptr. 820, 799 P.2d 1253].) The mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Civ. Code, § 1639.) The “clear and explicit” meaning of these provisions, interpreted in *868 their “ordinary and popular sense,” unless “used by the parties in a technical sense” or “a special meaning is given to them by usage,” will control judicial interpretation. (Civ. Code, §§ 1638, 1644.)

On the other hand, “ ‘[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.’ . . . This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, ‘the objectively reasonable expectations of the insured.’ . . . Only if this rule does not resolve the ambiguity do we then resolve it against the insurer. ... [^0 In summary, a court that is faced with an argument for coverage based on assertedly ambiguous policy language must first attempt to determine whether coverage is consistent with the insured’s objectively reasonable expectations. In so doing, the court must interpret the language in context, with regard to its intended function in the policy. . . . This is because ‘language in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.’ ” (Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1264-1265, italics in original, citations onmted.)

The Bank of the West court made it clear that it was no longer enough to find an abstract ambiguity or a meaning for a disputed word or phrase which was simply ’’semantically permissible.” 11 In order to conclude that an ambiguity exists which will be construed against an insurer, it is necessary first to determine whether the coverage under the policy, which would result from such a construction, is consistent with the insured’s objectively reasonable expectations. (Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1106 [37 Cal.Rptr.2d 508].) In order to do this, the disputed policy language must be examined in context with regard to its intended function in the policy. (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1265.) This requires a consideration of the policy as a whole, *869 the circumstances of the case in which the claim arises, and “common sense.” (Id. at p. 1276.) Such an evaluation of an insured’s objectively reasonable expectations under that criteria may result in a restriction of coverage rather than an expansion. (Sequoia Ins. Co. v. Royal Ins. Co. of America (9th Cir. 1992) 971 F.2d 1385, 1390 [applying California law].) An insured will not be able successfully to claim coverage where a reasonable person would not expect it. (See, e.g., La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 41-43 [36 Cal.Rptr.2d 100, 884 P.2d 1048]; Farmers Ins. Exchange v. Knopp (1996) 50 Cal.App.4th 1415, 1423 [58 Cal.Rptr.2d 331]; A. C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188, 1194 [56 Cal.Rptr.2d 207]; Cooper Companies v. Transcontinental Ins. Co., supra, 31 Cal.App.4th at p. 1104.)

We recently had occasion to apply these principles in the context of a trademark infringement dispute. In Lebas Fashion Imports of USA, Inc. v. ITT Harford Ins. Group (1996) 50 Cal.App.4th 548 [59 Cal.Rptr.2d 36] (Lebas), we concluded that the advertising offense “misappropriation of an advertising idea or style of doing business” was indeed ambiguous and, in the context of the facts of that case, the insured could have objectively reasonable expectations of coverage. However, the scope of our conclusion was necessarily confined by the specific circumstances in which it was reached. In Lebas, we were dealing with an insured that allegedly had appropriated the proprietary mark and name of an international distributor of high fashion perfume and cosmetics, and that was utilizing such mark and name in the labeling, marketing and advertising of its own line of clothing. We noted that, contrary to the fundamental purposes of a patent, one of the three fundamental purposes of a trademark was to advertise the products of the trademark holder and that an infringement of the trademark frequently occurred in the course of advertising. (Id. at pp. 557.) 12 Moreover, a trademark often represented the manner and means of such advertising, or at the least was an integral part thereof, and as such could easily and reasonably be considered to fall within the definition of an “advertising idea” and be considered a part of the trademark holder’s “style of doing business.” (Id. at pp. 557, 564-565.) Thus, an insurer’s promise to provide coverage for the insured’s misappropriation of either an “advertising idea” or a “style of doing business” could reasonably be construed by a layperson insured to include a trademark infringement. (Id. at p. 565.) This was particularly true *870 in light of the fact that, in Lebas, the record reflected that these new policy definitions of advertising injury offenses (which had replaced prior offenses described as “piracy” and “unfair competition”) were accompanied by the deletion of an exclusion for trademark infringement that had been a part of the prior policy. (Id. at pp. 565-566.) 13

Understandably, Mez asks us to apply the same reasoning in this case and to find the policy’s misappropriation offense ambiguous. However, we cannot go that far. In Lebas, we did not find that clause to be ambiguous in the abstract. We only reached the conclusion we did in the context of (1) the language of the policy, (2) the general circumstances of that particular case and (3) “common sense.” (See Old Republic Ins. Co. v. Superior Court (1998) 66 Cal.App.4th 128, 143 [77 Cal.Rptr.2d 642]; disapproved on other grounds in Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 841, fn. 13 [88 Cal.Rptr.2d 366, 982 P.2d 229].) We examined the policy language in that context with regard to its intended function in the policy and attempted to evaluate the insured’s objectively reasonable expectations under that criteria. (Ibid.) We have examined this same language in Pacific’s policy and use the same criteria as we did in Lebas, but in the context of the facts in this case, we reach an entirely different result. We do not see how Mez’s inducement of the infringement of Ductmate’s particular patents reasonably could be considered to be the misappropriation of an “advertising idea” or “style of doing business.” Similarly, as we discuss below, we see no reasonable basis for characterizing such inducement as constituting the infringement of a “copyright, title or slogan.” As the federal cases we discuss below have said, such a construction would be offensive to both commonly understood meaning as well as common sense.

While we are aware of at least two cases which have concluded that the language in pre-1986 policies which described the offense of “piracy” was ambiguous enough to embrace patent infringement (see New Hampshire Ins. v. R.L. Chaides Const., supra, 847 F.Supp. at p. 1456; National Union Fire Ins. Co. v. Siliconix, Inc. (N.D.Cal. 1989) 729 F.Supp. 77, 79), 14 we are *871 aware of no California or federal case which has reached a similar result with respect to the post-1986 policy language before us. 15

On the other hand, there are a number of cases which have concluded that the new language is not ambiguous, at least in the context of a coverage claim for patent infringement, and that no coverage is provided. Obviously, if patent infringement cannot properly be characterized as an advertising injury offense, then neither could its inducement. In Owens-Brockway Glass v. International Ins. Co. (E.D. Cal. 1995) 884 F.Supp. 363, the court rejected the coverage claim of an insured who had suffered a judgment for non-wilful patent infringement in the sum of $36,485,400.

When the insured sued its insurer to recover the judgment, the court concluded that patent infringement simply was not covered. The OwensBrockway court applied the same principles of policy construction discussed above and then stated: “Plaintiff argues that patent infringement is included within the policy language insuring advertising injury as ‘infringement of title’ or ‘misappropriation of style of doing business.’[ 16 ] Plaintiff consults the dictionary to find that the word ‘title’ can refer to ownership of property such as a patent. Under this argument, the phrase ‘infringement of. . . title’ could refer to infringement of a patent. Similarly, plaintiff argues that ‘misappropriation of style of doing business’ could refer to patent infringement. Neither claim is reasonable, however, when the words ‘title’ and ‘style of doing business’ are examined in the context of their use and in the light of common sense. ftO First, and perhaps most significantly, there is the glaring absence of the word ‘patent’ anywhere in the policy language defining advertising injury. The language defining ‘advertising injury’ includes ‘slander [,]’ ‘libel,’ ‘right of privacy,’ ‘advertising ideas,’ ‘style of doing business,’ and ‘copyright.’ These are specific terms connected to well known legal categories, just as a claim of patent infringement is a distinct legal claim. But there is not a mention of ‘patent’ anywhere in the definition or elsewhere in the policy. Surely if coverage for patent infringement were anticipated there would be some mention of the term itself just as ‘copyright’ is explicitly listed. Several courts have commented vigorously on the significance of the omission of any reference to patent in the definition of advertising injury: ‘[I]t is nonsense to suppose that if the parties had *872 intended the insurance policy in question to cover patent infringement claims, the policy would explicitly cover infringements of “copyright, title or slogan,” but then include patent infringement, sub silentio, in a different provision, by reference to ‘unauthorized taking of . . . [the] style of doing business.’ [Citation.] ... ‘It is even more absurd to suggest that the phrase “infringement of . . . title,” as used in the clause “infringement of copyright, title or slogan”, encompasses patent infringement or inducement to infringe. Basic common sense dictates that if these policies covered any form of patent infringement, the word ‘patent’ would appear in the quoted ‘infringement’ clauses.’ [Citation.] Moreover, as noted above, the policy language at issue here does not include the terms ‘piracy’ or ‘unfair competition’; it lists well recognized and narrow categories of legal claims among which patent infringement is notably absent. HO Second, neither the term ‘infringement of title’ nor ‘misappropriation of style of doing business’ suggests coverage of patent claims when these terms are viewed in the context of their use. One of the most significant parts of that context is that both terms are part of the definition of ‘advertising injury.’ There is nothing about the term ‘advertising injury’ itself that remotely suggests coverage of patent infringement.” (884 F.Supp. at p. 367, fns. omitted.)

In Gencor Industries v. Wausau Underwriters Ins. Co. (M.D.Fla. 1994) 857 F. Supp. 1560, the court concluded that neither patent infringement nor inducement of infringement were covered offenses under this same policy language. Its reasoning was identical to that expressed by the OwensBrockway court. (857 F.Supp. at.p. 1564.) Finally, in St. Paul Fire & Marine v. Advanced Interventional (E.D.Va. 1993) 824 F.Supp. 583, 584-587, the court, applying California law, reached that same conclusion.

We think the analysis of these federal decisions is persuasive and we adopt their reasoning here. In the context of the facts and circumstances of this case, the policy terms “misappropriation of an advertising idea or style of doing business” and “infringement of copyright, title or slogan” simply could not be reasonably read by a layperson to include either patent infringement or the inducement thereof. This conclusion is consistent with the principles of contextual reasonableness which we have already summarized. Clearly, the Ductmate patents did not involve any process or invention which could reasonably be considered an “advertising idea” or a “style of doing business.”

With respect to Mez’s argument that there is coverage under the “infringement of . . . title . . .” provision in the policy, we reach the same conclusion. Our construction of that phrase is informed by the doctrine of ejusdem generis under which a term is interpreted by reference to the surrounding language. (See, e.g., American Motorists Ins. Co. v. Allied-Sysco Food Services, Inc. (1993) 19 Cal.App.4th 1342, 1349 [24 Cal.Rptr.2d 106], disapproved of on another ground in Buss v. Superior Court (1997) 16 Cal.4th 35, *873 50, fn. 12 [65 Cal.Rptr.2d 366, 939 P.2d 766] [policy covering “humiliation” was “limited to those cases in which humiliation damages arise out of the types of torts in which it is grouped—i.e., libel, slander, defamation of character, and invasion of the right to privacy”]; Waranch v. Gulf Insurance Co. (1990) 218 Cal.App.3d 356, 360-361 [266 Cal.Rptr. 827] [“private occupancy,” when grouped with “wrongful entry” and “wrongful eviction,” could only mean occupancy of real property, not a motor vehicle]; Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1133 [47 Cal.Rptr.2d 670] [the policy term “other invasion of the right of private occupancy” must be read as similar to terms “eviction” and “trespass” appearing in same coverage phrase]; Truck Ins. Exchange v. Bennett (1997) 53 Cal.App.4th 75, 86 [61 Cal.Rptr.2d 497] [coverage for “disparagement” tort “cannot reasonably be read to include any more than those causes of action customarily grouped together into the legal category of defamation”]. Applying this principle here, Mez’s contention that a claim of patent infringement falls within the “infringement of . . . title . . .” must be rejected. The advertising offense, “infringement of copyright, title or slogan” must be read as a whole and interpreted by reference to all of the words used, and in full recognition that the words “patent infringement” are not included. In our view, reading the phrase as a whole compels the reasonable conclusion that coverage is at most provided for claims involving (1) those matters which are protected by copyright statutes and decisions, and (2) those literary, musical, artistic or commercial titles, marks or slogans which are protected by common law principles of unfair competition. 17 The phrase simply cannot reasonably be interpreted to encompass claims involving patent infringement.

A number of courts agree with this conclusion. (Owens-Brockway Glass v. International Ins. Co., supra, 884 F.Supp. at p. 368 [“The term ‘infringement of title’ is part of a list that includes copyright and slogan. In company with these terms, ‘title’ apparently refers to a name, such as a name of a literary or artistic work, rather than to ownership of an invention or other thing”]; ShoLodge, Inc. v. Travelers Indem. Co. of Illinois (6th Cir. 1999) 168 F.3d 256, 259-260 [in a service mark infringement case, the court held the term *874 “title” was unambiguous and was defined as the “non-copyrightable title of a book, film, or other literary